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Behind the Cover Story: Emily Bazelon on Pornography and Punishment

By Rachel Nolan January 28, 2013 6:19 amJanuary 28, 2013 6:19 am

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Emily BazelonCredit Nina Subin

Emily Bazelon wrote this week’s cover article about the legal efforts by abuse victims who have appeared in child pornography to gain restitution from people convicted of looking at images of them. Bazelon, a staff writer at Slate and fellow at Yale Law School, last wrote for the magazine about an anti-abortion activist named Charmaine Yoest. Bazelon’s book on bullying, “Sticks and Stones,” will come out this February.

Without revealing any details of their identities, how did you first hear about or get in touch with these two women, whom you refer to as Amy and Nicole?

I was reading a blog by Douglas Berman, a law professor who is obsessed with sentencing issues in a really useful way. He linked to a short news article about restitution cases. I knew Paul G. Cassell, the lawyer who was arguing the case, a little bit, so I called him. And that’s how I started reporting this story. He put me in touch with James Marsh and Carol Hepburn, who are the main lawyers bringing these restitution suits. There are a couple of other cases under way, but the story really rose and fell on whether Amy and Nicole felt like they wanted to talk. The whole point would be to tell the story from their perspective. At first, through her lawyer, Amy said yes. Nicole wasn’t sure how she felt about it. The tricky part for her, I think, was telling the story without becoming retraumatized. Eventually she decided she was in a place where she could tell her story, and wanted to, and we all hope it won’t set her back.

Could the publicity of the article or the continuing lawsuit, which may make it to the Supreme Court, pose any sort of physical danger to either woman? I’m thinking of the terrifying incident of Nicole being found and stalked on MySpace.

These young women are paranoid for a really rational reason. There are many, many people — most of them men — who have looked at these pornographic images of them. Some of these men are pretty obsessed with these images. Not with Amy’s and Nicole’s adult selves, but with their childhood selves. There is no way to dismiss that risk for either of them, particularly if their case goes to the Supreme Court and gains even more attention, which I think is pretty likely. And it’s also a risk they ran in cooperating with this story. I spoke to them both at length about this, particularly once I learned about that stalking incident. They felt as if it was important to them to talk about what happened, and they both put a lot of emphasis on helping other victims.

The fact that these images are still in circulation is such a source of pain for Amy and Nicole. Is there really no way to scrub them from the Internet?

For these two women, there is no technological remedy. In addition to the fact that the images are all over the Internet, they’ve been downloaded hundreds of thousands of times. The main way that they circulate is computer-to-computer file sharing, so they are hosted on computers all over the place. It’s like an infection that has spread — you can’t make it come back. At the moment there is no real way to scrub the Internet. Congress has made it quite difficult to sue a Web site or Internet Service Provider for hosting defamatory content. (I have written before about the limitations of a law called Section 230 of the 1996 Communications Decency Act, which is the main law that deals with Internet speech.) Europeans have been developing an idea that they hope will have legal implications for Internet activity — le droit à l’oubli, or the right to be forgotten. At the moment that idea is not in the least enshrined in American laws.Can you talk a bit about your own ambivalence on the issue of restitution?

Of course I don’t begrudge Amy and Nicole the money. The idea of making people who produce and distribute child pornography pay victims is a really powerful one. The tricky part is who pays what. In this case, the men who produced the pornography and distributed it have gone to prison but have paid nothing. They weren’t wealthy. And I do find this idea of a few wealthy people who view the pornography paying all of the restitution money to be somehow uncomfortable. The one man who ended up paying an enormous amount of money in this case frankly I think had a bad lawyer. But I see the virtue of the joint and several liability theory from the point of view of victims — because they don’t have to go after all of the viewers. If you think about the practical applications of going after everyone who has downloaded and getting these little awards piecemeal, you see the virtue of finding a couple of wealthy defendants. The legal question of how they get it is hard — and it is not decided yet in the courts. Which legal interpretation will win out in the end?

Is there any hope that restitution, if it wins out as a legal doctrine, will have a deterrent effect?

Well, it’s a common refrain in child pornography cases to say that it is a victimless crime. The person who downloaded the image was quote unquote just looking. So, yes. Restitution helps force them to see that they are part of a market that depends on hurting real children. One thing that struck me is that a couple of men have written to Nicole and Amy through their lawyers to say that reading the victim-impact statements made them feel differently and made them want to say that they’re sorry. Those may be self-serving statements by people hoping for shorter prison sentences, but that is not how Amy and Nicole read them.

You’ve done past reporting on bullying and have just finished a book on the topic. Is there some connection between this piece and that work?

Working on this article alongside the book made me think about all the different ways of being a victim, and how you can both reckon with that identity and not let it overwhelm you. Some targets of bullying recover, and others don’t. One of the things I have been most interested in all of my work is human resilience. Recovering from trauma is not easy, nor does it come naturally, nor does it always happen. It’s unimaginable what Amy and Nicole went through, truly. I do want readers to feel what it is like to be these women, even if just for a moment. But I also wanted to show the benefit of the legal process for Amy and Nicole and that it has helped foster their resilience.

Bruce Grierson wrote this week’s cover story about Ellen Langer, a Harvard psychologist who has conducted experiments that involve manipulating environments to turn back subjects’ perceptions of their own age.Read more…